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Ben Jones, Solicitor

Category: Scots Law

Satisfied Customers: 40353

Experience: Specialist in UK Legal Matters

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Hi Ben
I have been working as an advisory teacher for 18 years

Resolved Question:

Hi BenI have been working as an advisory teacher for 18 years with exemplary record. I have been accused of claiming sole occupancy council tax while not entitled. Hence dismissal for gross misconduct. My son's appeared as witnesses stating where they had been living and reasons why they have not appeared on electoral lists. My neighbours also wrote statements saying that I lived on my own. The onus I know is on probability, however they have evidence also that while my son was paying council tax elsewhere he was still using my address. The only other evidence I have for appeal is from the homeowners of where they were living. In my letter of the decision it mentions my sons as witnesses however doesn't mention anywhere that they have taken into account my neighbours statements. Any advice is greatly received.

PS: I am due in some meetings now but please leave this with me and I will get back to you with my full advice this afternoon. Thank you

Customer:

Thank you

Ben Jones :

Thanks, XXXXX XXXXX the dismissal taken place?

Customer:

sorry, dismissal took place last Friday

Ben Jones :

ok thanks, XXXXX XXXXX in touch today

Ben Jones :

Many thanks for your patience. Just before I provide my advice can you please let me know what connection is there between the allegations against you and your job - why did the employer decide the two are linked and dismiss you?

Customer:

No connection but I work for council and under their code of conduct fraud relating to council tax is a act of gross misconduct

Customer:

They are not accepting statements from myself, sons or neighbours and result is probability that they have been living me even though they haven't.

Ben Jones :

I will explain the general law in relation to misconduct dismissals and go into specifics along the way.

Misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.

In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:

Carries out a reasonable investigation;

Follows a fair disciplinary procedure;

Has reasonable grounds for believing the employee was guilty; and

Show that dismissal was a reasonable decision that a reasonable employer would have taken in the circumstances.

I will deal with these requirements in more detail:

1. Investigation - what is a reasonable investigation depends on the case and what resources are available to the employer. However, an employer is only expected to go as far as is reasonably practicable in the circumstances and they would not be expected to conduct a forensically detailed investigation.

2. Disciplinary hearing - if the investigation produces evidence that misconduct may have occurred then the employee should be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. At the disciplinary hearing the employee must be given the opportunity to defend the allegations.

In relation to witness the ACAS Code of Conduct, which employers are expected to follow, states: "The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this." In addition, the employer is advised to "try and get a written statement from any witness from outside the organisation who is not prepared to or is unable to attend the meeting" and to "allow the employee to call

witnesses or submit witness statements".

3. Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty, they can go ahead and dismiss. When deciding on whether to dismiss, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and a clean disciplinary record should result in the employer giving more thought into deciding what action to take.

4. Penalty - unless the offence in question amounts to gross misconduct (i.e. something so serious to justify instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning first. If any further misconduct occurs in the future, only then should dismissal be considered.

In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. A dismissal can be fair if the employer can meet the above requirements. You should have been allowed to submit statements from witnesses you believe were relevant, although it is for the employer to decide how much weight to attach to them.

If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer.

Customer:

They obviously gave no weight to the statements from my neighbours or my witnesses stating that I live alone. Surely though if they fully believed I had committed fraud then I would have been questioned under caution allowing PACE protection?

Customer:

Sorry, I just don't see how this can happen when not based on fact.

Ben Jones :

fraud and being questioned under caution is separate to the employment disciplinary procedure - the two can take place at the same time but are not related so the rules governing employment matters and dismissal have nothing to do with criminal allegations of fraud and what happens there. Also as mentioned the rules regarding employment are not as strict as those relating to criminal matters so whereas to convict someone the police would need to prove it had happened beyond reasonable doubt, it is certainly not the case in employment where a reasonable investigation and a genuine belief are sufficient, backed up by showing the decision was reasonable in the circumstances

Customer:

Thanks Ben

Ben Jones :

At this stage concentrate on the appeal - remind the employer that you are allowed to use witness evidence as you see fit and that it should be considered by them in their deliberations

Customer:

Thanks for that. I was surprised that in the formal letter of termination that they mentioned they took into account all the facts from myself and my witnesses but didn't mention the statements from my neighbours

Ben Jones :

it is an appeal point so do raise it when you appeal

Ben Jones :

and ask for reasons why they were not taken into account

Customer:

thanks I will.

Customer:

Have a good evening.

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and all the best

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